Unimpressed Judge Tosses One Of Devin Nunes' SLAPP Suits Against The Washington Post
Back in March, Devin Nunes filed yet another of his many, many SLAPP suits. This one was against the Washington Post and reporter Shane Harris. As we noted at the time, the lawsuit was mostly performative, and had no real legal argument. After first being transferred to the appropriate venue, last week the federal court in DC easily tossed the case noting that Nunes failed to plead anything actually defamatory.
The Complaint contains two related counts: The first claims that Defendants defamedPlaintiff; the second claims that Defendants conspired with House Democrats to defamehim.... The Post argues that both counts should be dismissed for failure to statea claim.... As explained below, the court agrees. And because Plaintiff's proposed amendments fail to cure the Complaint's fundamental defects, the court also deniesPlaintiff's Motion for Leave to File an Amended Complaint.
To see just how badly Nunes's claims failed, the judge even notes that Nunes and his lawyer Steven Biss tried to say that the first claim was "defamation per se," but as the court notes, that's not actually what they claimed. It's kind of stunning how frequently people assume that "defamation per se" means "obvious defamation," which often translates into "obviously that was really mean." But... that's not what it means. The specifics of defamation per se differ depending on local defamation laws, but it generally only matters for determining damages, not whether or not something is actually defamatory (or really mean). It's just that if you can show defamation per se (which is generally limited to a few categories of defamation that would be seen to obviously undermine someone's reputation) then you don't have to show damages -- rather, damages are assumed.
But, as the judge notes here (and I'll just say, it's probably not a good start when a judge starts a ruling by noting that the thing you argued was your first claim was not what you claimed it was), they didn't actually plead defamation per se:
Although Plaintiff styles the first count as defamation per se,"... his claimsare more appropriately considered defamatory implication claims. [D]efamation by implicationstems not from what is literally stated, but from what is implied." White v. Fraternal Order ofPolice, 909 F.2d 512, 518 (D.C. Cir. 1990). Plaintiff does not challenge the substantial truth ofany statement in the Article. ... Rather, he alleges that [t]he defamatorygist of the [Article] is that Plaintiff lied to and deceived the President of the United States[.]"... Thus, Plaintiff contests not any assertion of fact contained in theArticle but, rather, the meaning conveyed by those facts
And, as we've discussed regarding similar cases in the past, this is not how defamation law works at all. And that's especially true here.
To establish defamation by implication, the plaintiff must demonstrate (1) that adefamatory inference can reasonably be drawn" and (2) that the particular manner or language inwhich the true facts are conveyed" supplies additional, affirmative evidence suggesting that thedefendant intends or endorses the defamatory inference."... Here, the Complaint alleges two defamatory implications stemming from statements in the Article, neitherof which can rationally be considered reasonable or intended or endorsed.
Plaintiff first alleges that Defendants defamed him by implying that he lied to anddeceived the President of the United States" by telling the President that Shelby Pierson had givenan exclusive briefing" to Representative Adam Schiff.... The Article does not,however, say that Plaintiff told the President that Pierson had delivered an exclusive briefing" toRepresentative Schiff. It reports only that Trump erroneously believed that Pierson had given theassessment exclusively to Rep. Adam B. Schiff."... Plaintiff pieces that statement togetherwith the Article's subsequent statement that Trump learned about Pierson's remarks from[Plaintiff]" to allege the implication that Plaintiff lied to the President.... But suchan inference is unreasonable. Even if one could plausibly read the Article as implying thatPlaintiff's communications with President Trump somehow contributed to the President'serroneous belief, nothing in the Article suggests that Plaintiff affirmatively lied to and deceived"the President. As the Post notes in its brief: In the absence of any other explanation, thereasonable assumption is that there was a simple misunderstanding or miscommunication." ... The defamatory implication Plaintiff asserts is further negated by the Post'sdescription of the briefing as one offered to all members of the committee."... Thatuncontested fact leaves the reader with the impression that the President's erroneous"understanding was the product of mistake or misunderstanding, not a falsehood uttered by Plaintiff.This view is reinforced by the Article's description of Plaintiff as a staunch Trump ally."... Plaintiff points to no facts to support the inference that a staunch ally" would deliberately deceivethe President about the exclusivity of an intelligence briefing, when the fact of the briefing's access to all members was so readily ascertainable. For these same reasons, the alleged defamatoryinference cannot be considered either intended or endorsed by Defendants.
Not a good start. How about the next one?
Plaintiff's second alleged implication fares no better. The Complaint highlights theArticle's statement that Trump's opinion of [Acting Director of National Intelligence Maguire]shifted . . . when he heard from a Republican ally about [Pierson's] remarks."... InPlaintiff's view, that statement implies that Plaintiff sought to ruin' Maguire's chances ofbecoming the permanent intelligence chief."... But as the Post points out, the Article explainsthat it was [t]he intelligence official's analysis and Trump's furious response [that] ruinedMaguire's chances of becoming the permanent intelligence chief," not Plaintiff's characterizationof Pierson's remarks. ... As a result,any inference that Plaintiff sought to ruin" Maguire's chances for appointment as Director ofNational Intelligence is unreasonable. And assuming it were reasonable, Plaintiff provides nowarrant for the idea that the particular manner or language" of the Article's statements suppliesadditional, affirmative evidence suggesting that the [Post] intends or endorses" such an inference.
From there, the court goes even further, pointing out that even if there were some defamatory implication in the article (and again, there was not), it couldn't even come close to pleading "actual malice" standard necessary for defamation of a public figure. As is often the case in crazy SLAPP suits, rather than plead the actual points in the actual malice standard, Biss and Nunes chose to repeat performative nonsense and conspiracy theories about how mean the defendants were. The court points out that this is not how any of this works.
Instead of engaging with the Post's arguments on actual malice, Plaintiff repeats various-largely conclusory-allegations from his Complaint. ... One set ofallegations amounts to nothing more than the naked assertion that Defendants knew the statementsin the Article were false.... This type of pleading, which offers no more than labels and conclusions" and areference to the relevant legal standard, does not satisfy Rule 8. Iqbal, 556 U.S. at 678 (quotingTwombly, 550 U.S. at 555); see also id. (noting that a complaint does not suffice if it tendersnaked assertions devoid of further factual enhancement" (cleaned up)).
Another set of allegations boils down to the claim that Defendants published the Articledue to animus against Plaintiff and others.... Besides the fact that these allegations are similarly conclusory, caselaw resoundingly rejects the proposition that a motiveto disparage someone is evidence of actual malice." ...
Plaintiff also peppers his opposition brief with several stray allegations that do nothing tomove the needle. First, he cites his allegation that, pre-publication, Defendants initiallyrepresented that Plaintiff and the President met at the White House on February 13, 2020, eventhough Defendants did not ultimately include that inaccuracy in the Article.... The court struggles to understand how a decision not to publish aninaccurate statement supports the claim that Defendants knowingly published false statements inthe Article. If anything, Defendants' attempted verification and subsequent exclusion of theinaccurate statement suggests the opposite. Next, Plaintiff contends that Defendants abandonedall journalistic standards and integrity . . . in writing, editing, and publishing the [Article]."... Yet Plaintiff nowhere identifies the journalistic standards andintegrity" that the Post purportedly violated. He cites Gilmore v. Jones for the general propositionthat a failure to investigate or observe journalistic standards, although not determinative, isrelevant to the actual malice inquiry," ... But in Gilmore itself, the departure from journalisticstandards was a failure to seek comment... the opposite of whathappened here.... Finally, Plaintiff referenceshis allegation that Defendants knew he was in Tulsa, Oklahoma, for a campaign event on February14, 2020, the day after the classified briefing. He maintains this fact shows that he could not havepossibly advised the President about the briefing. ... Although his allegation includes a specific fact that might bear on Defendants' subjectiveknowledge, it does not conflict with what the Post reported in the Article. As the Post notes, [t]heArticle does not report when President Trump learned of the briefing from [Plaintiff] (or how) . . .[Plaintiff] could have conveyed the information to President Trump on a different day[.]" ... The allegation, therefore, does not support Plaintiff's claim that the Post knew thatanything it reported in the Article was false
Nunes' and Biss' "common law conspiracy" claim fares no better because, as again is so often the case in SLAPP suits, all these other claims are just attempts to claim defamation under another name.
The court then rejects Biss' attempt to file an amended complaint noting that nothing in the proposed complaint could solve any of this.
Here, the court concludes that Plaintiff's amendments would be futile because they fail tocure the defects explained above. For one, the Amended Complaint contains no further allegationsthat would satisfy the pleading requirements for defamation by implication.... Moreover, the Amended Complaint does nothing toaddress Plaintiff's inability to plead actual malice. Instead, it repeats the same litany of conclusoryor otherwise insufficient allegations.... Plaintiff invites the court to reconsiderthe actual malice standard established in New York Times v. Sullivan... , but for obvious reasons, the court cannot doso, see Agostini v. Felton, 521 U.S. 203, 237 (1997) (indicating that lower courts should leav[e]to th[e] [Supreme Court] the prerogative of overruling its own decisions").
Of course, Nunes may appeal and waste more of the Washington Post's time and money. And he still has his other SLAPP suit against the Washington Post that was just filed last month.
It truly is impressive just how many bad SLAPP suits Devin Nunes has filed. Considering that he's repeatedly expressed his support for "free speech" and the 1st Amendment, as well as complained about "frivolous litigation," it really is worth noting that he is alone among elected officials in Congress to file so many lawsuits attacking the free speech of the media and his critics.